2004(01)LCX0397

IN THE CESTAT, WEST ZONAL BENCH, MUMBAI

Ms. Jyoti Balasundaram, Member (J) and Shri K.D. Mankar, Member (T)

LLOYDS INSULATIONS (INDIA) LTD.

Versus

COMMR. OF CUS., SAHAR AIRPORT, MUMBAI

Order No. A/108/2004-WZB/C-I, dated 23-1-2004 in Appeal No. C/108/98

REPRESENTED BY :        Shri K.K. Shroff, Advocate, for the Appellant.

Shri Srivastava, DR, for the Respondent.

[Order per : K.D. Mankar, Member (T)]. - The issue involved in the instant appeal relates to the correct classification of “foaming machine”. The lower authorities sought to classify the same under Heading No. 8479 of the Customs Tariff as against the claim of classification under Heading No. 8477 made by the appellants. Foaming machine mixes two raw material inputs; polyol and isocynate under controlled conditions, resulting in the formation of polyurethane. Polyurethane comes out of the dispensing port in molten form and can be poured into various moulds to get polyurethane foam products.

2. The Asstt. Commissioner had held that though polyol is a plastic but the machine is not working on it as plastic and is converting it as polyurethanes. Therefore, this type of machine is not covered under Heading No. 84.77. On appeal, the Commissioner (Appeals) held that polyol is not ‘plastic’ and then further proceeded to hold that since the input is not plastic the machine does not qualify to be classified under Heading No. 84.79.

3. In the instant appeal, the finding of the Commissioner (Appeals) are under challenge.

4. Heard both sides. We note that the appellants have challenged the order of the Appellate Authority claiming that once the Asstt. Commissioner had held that the polyol is plastic, without challenging this finding before the Commissioner (Appeals), the Commissioner (Appeals) had no jurisdiction to reverse the finding and say that polyol is not plastic.

5. Therefore this finding of the Commissioner (Appeals) was beyond the scope of the issue that was raised in appeal and hence the Commissioner (Appeals) had gone beyond the scope of the issue that was not in challenge before him. We agree with the appellants and accordingly we hold that the finding of the Asstt. Commissioner that the polyols are plastics having become final, could not be reopened by the Commissioner (Appeals) in the absence of cross appeal from the Revenue.

6. Having arrived at the above conclusion, it is apparent that the machine having processed the polyols i.e. plastic to manufacture a resultant product which is also a plastic, the machine qualifies to be a machinery of Heading No. 84.77 as claimed by the appellants. Consequently, the appeal succeeds and the same is allowed with consequential relief, if any, in accordance with law.

Equivalent 2004 (166) ELT 0510 (Tri. - Mumbai)

Equivalent 2004 (064) RLT 0203 (CESTAT-Mum>)